Could a Supreme Court Decision Affect Disclosure Obligations on Political Advertising?

David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

Last week, we wrote about two dissenting opinions in a Supreme Court decision that highlight the debate that is underway on the principles that govern defamation liability in the United States.  While we are reviewing Supreme Court decisions that could have an impact on broadcasters, including on political advertising, we thought that we should highlight another decision of the Supreme Court, a case called Americans For Prosperity Foundation v. Bonta, Attorney General of California, that could have an even more direct effect on the political advertising disclosure obligations of broadcasters.  In that case, the Court struck down a California requirement that charities operating in California reveal to the state their major donors.  Even though the state was supposed to keep this information confidential, the Court felt that the potential for disclosure of the contributors to groups dealing with controversial issues could chill their willingness to donate to the charitable groups, due to fears of repercussions should their donations become public (thus, in effect, creating a restraint on their First Amendment right to free association).  But could this decision have a wider impact on First Amendment rights and potentially affect disclosure obligations about contributions used for political advertising?

At least one commentator, George Will, seemed to think so.  In a column that he wrote last week, he suggests that supporters of the DISCLOSE Act (we wrote about a similar bill introduced 5 years ago here) should be worried about its constitutionality in light of this Supreme Court decision.  If creating fears about the repercussions of donations to charitable organizations is seen as constitutionally suspect, a court could draw a similar conclusion about donations to political speech organizations.  The Supreme Court’s decision does acknowledge that the government could justify narrowly tailored disclosure obligations that advanced an important government interest, and the Court has, in the past, upheld disclosure obligations for contributors to political campaigns.  But would today’s Court see things the same way?  Would it make distinctions between disclosures of donations directly to campaigns (which have been upheld in the past where they could be seen as being linked to an attempt to buy influence with a candidate) versus  donations to third-party organizations that may engage in political speech, including support or opposition to candidates, which the Court might view  as the donors exercise of its free speech rights (as were the political expenditures by corporations in the Citizen’s United case – see our articles here and here)?  Time will tell how the ramifications of the Court’s decision will play out.

Were this protection of anonymous donations extended to political speech, we could see difficulties in passing and defending the Disclose Act as well as issues with state political disclosure rules.  As we wrote here and here, many states have been adopting laws that regulate political advertising.  In many states, regulations include requirements that the top donors to any non-candidate group buying political and issue advertising be disclosed – even on broadcast ads.  An expansive reading of the Court’s recent decision could spell problems for these rules similar to those that have faced other attempts by states to impose more transparency on political speech (see, for instance, our article on the demise of certain Maryland’s political regulations requiring that media outlets maintain public records of the purchase of pollical advertising accepted by such outlets).  This is one more line of cases that broadcasters need to watch as the ramifications of the Court’s decision unfold in future decisions.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).

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